| Velez v Forcelli |
| 2015 NY Slip Op 00871 [125 AD3d 643] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| Angela Velez, Respondent, v John Forcelli,Appellant. |
Reich, Reich & Reich, P.C., White Plains, N.Y. (Radina R. Valova of counsel),for appellant.
Albert A. Hatem, P.C., White Plains, N.Y., for respondent.
In an action to recover damages for breach of two promissory notes, the defendantappeals, as limited by his brief, from so much of an order of the Supreme Court,Westchester County (Hubert, J.), dated May 22, 2014, as denied his motion to vacate ajudgment of the same court (Allen, J.), dated April 29, 2011, entered upon his failure toappear or answer.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the matter is remitted to the Supreme Court, Westchester County, for a hearing todetermine whether the defendant was properly served with process, and for a newdetermination of the defendant's motion thereafter.
Under CPLR 5015 (a) (4), a default must be vacated once a movant demonstrateslack of personal jurisdiction (seeHossain v Fab Cab Corp., 57 AD3d 484 [2008]; Matter of Qadeera Tonezia D.,55 AD3d 606 [2008]). "Although a party moving to vacate a default must normallydemonstrate a reasonable excuse and a meritorious defense, the movant is relieved of thatobligation when lack of personal jurisdiction is asserted as the ground for vacatur" (Harkless v Reid, 23 AD3d622, 622-623 [2005] [citations omitted]; see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d1074 [2010]).
A process server's affidavit ordinarily constitutes a prima facie showing of properservice (see Aurora Loan Servs.,LLC v Gaines, 104 AD3d 885, 886 [2013]; Sileo v Victor, 104 AD3d 669, 670 [2013]; Engel v Boymelgreen, 80AD3d 653, 654 [2011]). However, when a defendant submits a sworn denial ofreceipt of service containing specific facts to refute the statements in the process server'saffidavit, the prima facie showing is rebutted and the plaintiff must establish personaljurisdiction by a preponderance of the evidence at a hearing (see Aurora Loan Servs.,LLC v Gaines, 104 AD3d at 886; Sileo v Victor, 104 AD3d at 670; Engelv Boymelgreen, 80 AD3d at 654).
Here, the affidavits of the defendant and his wife contained specific facts sufficientto rebut the statements in the process server's affidavit concerning his unsuccessfulattempts to effect personal service upon the defendant. Thus, the defendant was entitledto a hearing on the issue of [*2]whether substitutedservice was properly effected pursuant to CPLR 308 (4) (see Sileo v Victor, 104AD3d at 670). Accordingly, we remit the matter to the Supreme Court, WestchesterCounty, for a hearing to determine whether the defendant was properly served withprocess, and for a new determination of the defendant's motion thereafter. Balkin, J.P.,Leventhal, Dickerson, Miller and LaSalle, JJ., concur.